In today’s Episode we examine the recent Court of Appeals cases of State v. Kraft and State v. Eldred, both decided in 2018. These decisions are dynamite cases for the defense and every attorney in NC that regularly handles DWI cases should be intimately familiar with these cases. In this episode get an overview of the procedural and substantive value of these two opinions.
Why it is important in a Motion to Dismiss based on Kraft or Eldred to hammer the standard of review for at the close of the State’s evidence
Examination of the facts in Kraft (focusing on driving) and Eldred (timing of consumption of impairing substance) and how to compare these facts with those of your client
We look at the high standard that the court sets when it comes to circumstantial evidence of either driving or the timing of alcohol consumption and how to argue the court this high burden
Learn how to refocus the argument you make during a Motion to Dismiss based on Kraft/Eldred during your final closing argument at the conclusion of a trial
‘”One hundred feet of tire impressions veer off a highway, past the scuffed boulder, and end at a damaged unoccupied vehicle whose registered owner is found walking along the same highway disoriented and unsteady on his feet. He admits that he has smoked up on meth and that he wrecked the vehicle a couple of hours earlier. Most anyone would surmise what happened and might very well be right. But because the law prohibits imposing criminal liability based on conjecture, gaps in the evidence and controlling precedent require that we reverse defendant’s conviction for driving while impaired.”
And that is the opening paragraph of a recent Court of Appeals decision, State v. Eldred, a case decided by the Court of Appeals in 2018, 815 S.E.2d, 742.
That case is a case that is extremely helpful in a situation where you have a client that is involved in an accident and the State cannot definitively show when the person, when your client was consuming alcohol or any other drugs. So either they don’t have an admission, didn’t observe any drinking. Basically, there is just pure conjecture as to when the person actually consumed alcohol.
So today, we are going to talk about State v. Kraft and State v. Eldred, two recent cases, both decided in 2018, that are extremely powerful defense cases. A couple of reasons why they are extremely powerful for the defense, but number one, and primarily, they overturn a defendant’s conviction for driving while impaired. So they end up being decided in favor of the defendant.
But more importantly is the focal point of when the Court of Appeals says that the trial court erred. And what the Court of Appeals says in both of these cases, State v. Eldred and State v. Kraft, is that based on the evidence in those cases, the trial court should have granted the defendant’s motion to dismiss at the close of the State’s evidence.
So these are extremely powerful cases because of the procedural timeframe of when the Court of Appeals says that the trial court went wrong.
When you look at a motion to dismiss at the close of the State’s evidence, so the State has put up its witnesses, has presented whatever exhibits and video that they want to present, and the State rests, the defense should always make a motion to dismiss. Whether you want to be heard on that motion or not, you should always make a motion to dismiss at the close of State’s evidence.
The Court of Appeals pointed to the fact that when you’re looking at a motion to dismiss, the evidence should be viewed in the light most favorable to the State, giving the State the benefit of all reasonable inferences. Viewed in the light most favorable to the State, giving the State the benefit of all reasonable inferences. Contradictions in the evidence do not warrant dismissal and are for the jury to resolve. So if you have contradictions at the close of the State’s evidence, that’s not sufficient to grant a motion to dismiss.
When ruling on a motion to dismiss, the trial court should be concerned only about whether the evidence is sufficient for jury consideration, not about the weight of the evidence. So setting up that overview and pointing… If you have a case where an Eldred or a Kraft issue is up for grabs, make sure that you first of all make your argument at the close of the State’s evidence following your oral motion to dismiss. I’m assuming that we’re in District Court at this time in terms of most of where these type of arguments happen.
So at the close of the State’s evidence, you make your motion to dismiss, and then begin by setting out the framework for a judge to consider a motion to dismiss at the close of the State’s evidence, looking at all of the evidence in the light most favorable to the State and giving the State the benefit of all reasonable inferences.
Now, why do you want to point that out? It’s like, whoa, that’s for the prosecutor to say that. We don’t want to give them more ammunition than they need. We don’t want to tell the judge not to grant our motion to dismiss. In this particular context, you want to emphasize that standard.
And the reason why is that there is decent circumstantial evidence of driving while impaired in both Eldred and Kraft, and the Court of Appeals said in both cases, “Not enough.” Even when we look at the evidence in the light most favorable to the State, the State can’t make a claim.
This is important for two reasons. One, in terms of setting up the motion to dismiss and the procedural standard of review at the end of the State’s evidence, this is important first of all because you want the judge to grant your motion to dismiss at the close of the State’s evidence.
But, more importantly, it’s really important to emphasize the procedural standard because then you can re-argue your Kraft or Eldred issues at the end of all of the evidence, but at that point, looking at it through the lens of beyond a reasonable doubt.
So you can say, “Judge, again, pointing you back to Kraft, which we had discussed during our motion to dismiss, in that case, the court was looking at the evidence through the light most favorable to the State. They were giving the State every benefit of the doubt. Now, the procedural framework is reversed. The standard of proof is reversed, and its every piece of evidence should be looked at with the benefit of the doubt being given to my client. Every piece of evidence should be looked at with scrutiny when it comes to what the State has said.”
So, again, if you can set up the framework of even when looking at the case in the light most favorable to the State under Kraft and Eldred, the court found not enough, if the judge doesn’t grant your motion to dismiss at the close of the State’s evidence, you can now flip the script and say, “Again, Judge, in these cases, it wasn’t even enough to survive a motion to dismiss with all of the inferences being given to the State.” So it’s really important in your motion to dismiss to argue that procedural standard by which the Court of Appeals in Kraft and Eldred in 2018 was looking at the evidence.
So first of all, looking at Kraft, again, the opening lines that I started the podcast out with are the opening lines of Eldred and Kraft, in Eldred, officers came upon a accident scene. They observed a hundred feet of tire impressions on the grass leading from the highway to the stopped vehicle. No person found on scene. Nobody found on scene. They start searching for whoever it might be that was driving the vehicle. And about two to three miles up Highway 221, they find the defendant. They find Mr. Eldred. And what they were looking for was pretty much anybody because they didn’t come upon any other person. So they find Mr. Eldred who has signs on his forehead of a recent cut. They observed that he was twitching and seemed unsteady on his feet. They asked what he was doing. And he said, “I don’t know. I’m too smoked up on meth.” They placed him in handcuffs and began their further investigation.
Later, defendant admitted that he was driving. The police never found anybody else on scene near the vehicle. They didn’t find anybody else walking along the highway. They found nobody else on scene. They didn’t observe at the time of first observing Mr. Eldred that he was smoking anything. They didn’t find anything that would indicate on his person recent meth use. They didn’t ask when he had last consumed meth. And that is the focal point that the court looked at was the lack of timeframe of when meth had been consumed.
Again, they come upon a serious accident. Nobody’s on scene. They find somebody down the roadway just a couple of miles away that indicates that they were driving, indicates that they’re smoked up on meth. But the record is silent, the testimony was silent about when defendant had last consumed drugs.
If you have a case where your record, where your evidence, your discovery is silent as to whether or not there has been any alcohol or other impairing substances consumed post-accident, or your client specifically states that they have consumed alcohol or an impairing substance post-accident, you have a Eldred issue.
This is worth consideration in terms of arguing this particular case because that’s what the court ultimately zeroed in on was that lack of evidence. The court after looking at this and, again, they had evidence that this person was driving because he admitted to driving. They had evidence of a bad accident, injuries to the individual that indicated he was driving. They have very serious statements from the defendant that he’s too smoked up on meth, signs and indicators of impairment. They don’t find anything on him indicating that he was smoking meth at the time that they come upon him. And there’s just no questions asked about the timing of consumption.
So what the court says is that a reasonable person, most anyone would surmise what happened and might very well be right is what the court says. Most anyone would surmise what happened. A reasonable person could look at this evidence and say, “That person was smoked up on meth at the time of driving.” But that’s not enough when it comes to a criminal case.
And not only is it not enough to get to beyond a reasonable doubt, the court in Eldred says, “This isn’t even enough when looking at all of this evidence in the light most favorable tothe State to survive a motion to dismiss at the close of the State’s evidence.” The court in summarizing why it believed a motion to dismiss should have been granted by the trial court indicates the gaps in the evidence in this case are analogous to those in State v. Ray, a 1981 Court of Appeals case.
The court in Eldred indicates in Ray a law enforcement officer found the defendant who was intoxicated alone in a disabled vehicle halfway in the front seat. The court held that the trial court erred in denying the defendant’s motion to dismiss a driving while impaired charge because the circumstantial evidence alone is insufficient to support a conclusion that the defendant was the driver. Clearly, this accident situation when the officers don’t come upon a vehicle where the defendant is still in the driver’s seat with the keys in the ignition, it’s circumstantial evidence. Circumstantial evidence in Ray. Circumstantial evidence in Eldred.
The Eldred Court went on to say, “This court noted that the State presented no evidence,” again, pointing back to Ray, “that the car had been operated recently or that it was in motion at the time the officer observed the defendant, nor did the State offer evidence that the motor vehicle was running with the defendant sitting under the steering wheel at the time the officer came upon the scene.”
These cases point to the fact that circumstantial evidence of driving and the timing of impairment has to be extremely strong, extremely strong. When you don’t have direct evidence of the timeframe of impairment, the circumstantial evidence better be extremely strong because even where it is the evidence that’s presented in Eldred and looking at it in the light most favorable to the State, that didn’t cut it. That didn’t get you there.
So where you have a case where there is a gap between driving and when officers get involved and the officers by circumstantial evidence alone can say that the person was impaired at the time of driving, so they don’t have an admission from the defendant of consumption of impairing substance only prior to driving, then you have this Eldred issue. And the circumstantial evidence according to Ray and according to State v. Eldred has to be pretty strong because the facts in Eldred are pretty good circumstantial evidence of impairment at the time of driving, and the court says, “Not enough.” Not enough to survive a motion to dismiss.
Another case from 2018 that focuses I would say more on the driving element than on the timeframe of impairment. So Eldred is a case that focuses primarily on the timing of impairment. So you have an accident. Driving isn’t necessarily an issue, but the timeframe of impairment is. Kraft focuses more on the driving elements being the thing that the court is going to focus in on. So in Kraft, the troopers respond to a accident. When they come upon the accident scene, they find a woman holding the defendant’s head as he snored.
A motorcycle was on the ground about 10 feet away. The trooper flashes his light into defendant’s face. And upon waking up, the defendant starts cursing and yelling. The trooper can smell a strong odor of alcoholic beverage coming from the defendant and notices that the defendant is sweating. The defendant has scrapes and bruises on his body, and his clothes are ripped. The trooper stated that the defendant’s condition made it appear to him that he was just recently involved in a motorcycle crash.
Trooper does roadside investigation. Does not find anybody else on scene that would indicate, that either admitted to being involved or that they could find was involved in the accident. They walk up and down the highway looking for anybody else that might be involved, and they can’t find anybody else up and down the highway. And after the defendant is transported by ambulance, they do an HGN test. After the defendant is transported by ambulance to the hospital, they follow up at the hospital with the defendant and briefly talk to him about the situation.
There’s no admission of driving. There’s no admission of driving. The record is silent as to the driving element. Again, just like in the Eldred case, most anyone who came upon that accident scene of a motorcycle single vehicle accident, finding a person that is knocked out on the side of the road 10 feet away from the motorcycle with nobody else on scene having injuries or admitting to driving, most people would think to themselves that dude was the dude that was driving. And it’s pretty clear from the fact that there’s an accident, this guy is the only one around, there’s no trail of blood to follow anybody else. We looked up and down the highway. We couldn’t find anybody else. Seems like this guy was the person driving.
And you might be right if you assume that.
But like in Eldred, the court pointed out that in a criminal case, this circumstantial evidence of driving was not enough, not enough to survive a motion to dismiss. So the court summarizes in State v. Kraft by this.
“Here, viewed in the light most favorable to the State, the State presented evidence that the defendant was found lying about 10 feet away from the motorcycle. As in Ray, Trooper Mastromonica noticed an odor of alcohol about defendant, and defendant had scratches and torn clothes that would suggest defendant was involved in an accident. However, the State presented no evidence suggesting that defendant had been driving the motorcycle rather than a passenger. There was no testimony that defendant was seen driving the motorcycle or even sitting on it. And there was no evidence that the keys were ever found or that defendant implicated himself. A defendant’s mere presence at the scene, as well as the fact that a defendant may have consumed alcohol, is insufficient to tend to show that he was the driver. Although the State established that defendant was the owner of the motorcycle, this information, even when combined with all the other evidence presented by the State, merely rose to a level of ‘suspicion or conjecture that defendant was driver of the motorcycle involved in the accident.”
That is some powerful language. If you are looking for some defense-friendly case law, State v. Kraft and State v. Eldred are where it’s at.
That is powerful language. Conjecture is not enough. Suspicion is not enough, not enough to survive a motion to dismiss at the close of the State’s evidence, and certainly not enough to rise to the level of proof beyond a reasonable doubt that is required in a criminal case.
So, again, from these cases, State v. Kraft and State v. Eldred, in summary, always talk about the standard that a judge is viewing these arguments through at the close of the State’s evidence, in the light most favorable to the State with all reasonable inferences in the State’s direction.
Then compare your case to State v. Eldred if you have a case that really is about the timing of consumption of an impairing substance, or State v. Kraft if you have a driving issue and the State is going to have a difficult time proving driving, or both if both issues exist. Argue those at the close of the State’s evidence in your motion to dismiss.
And then if the judge denies your motion to dismiss, make sure you re-argue at the close of all the evidence. But at that point, really pound the fact that the lens now is proof beyond a reasonable doubt. That’s not the lens that Kraft and Eldred looked at when they said there wasn’t enough circumstantial evidence. So how much more circumstantial evidence would be required in order to get to a conviction? Really, it’d be difficult to kind of think of a situation absent a defendant’s admission of drinking only prior to driving or of driving if you have a Kraft situation. Really, it’d be one of those situations where the State could then still obtain a conviction.
Circumstantial evidence would have to be ridiculously strong to not only survive a motion to dismiss, but for a judge to find your client guilty of driving while impaired at the close of all the evidence.
Hope this podcast has been helpful. Read State v. Kraft. Read State v. Eldred. Read State v. Ray. And I look forward to speaking with you again next time.